SCHOOL FOR LEGAL STUDIES

CENTRE OF POST GRADUATE LEGAL STUDIES

(Assignment Work)

SUBJECT:- Comparative Public Law

TOPIC:

Judicial Appointments in India: A Comparative Analysis

UNDER THE GUIDENCE OF:

SUBMITTED

BY:Dr. S. K. Bhatnagar and

Dr. Vijay Kumar Bhaskar

Name: Mudassir Rasool Wani

Class:
LL.M (One Year)
Enrolment: 053/16
Session: 2016-2017
Semester: 1st

Table of Contents
I.

Introduction

II.
III.
IV.

V.

VI.
VII.
VIII.

Constitutional Scheme of Judicial Appointments

National Judicial Appointments Commission: A Critique
Judicial Appointments
a.A Background
b.
Constitutional Mechanism
c.An Intellectual Perspective Supreme
Supreme Court Interventions and Interpretations
a.First Judges Case
b.
Second Judges Case
c.Third Judges Case
d.
Fourth Judges Case
Remedial Mechanism
Conclusion and Suggestions
Bibliography

List of Cases

SC Advocates-on-Record Association vs Union of India-I

Supreme Court Advocates on Record Association v. Union of India-II
Supreme Court Advocates on Record Association v. Union of India-III
S. P. Gupta v. Union of India
Subhas Sharma v. Union of India
Samsher Singh v State of Punjab
Union of India v Sankalchand Himatlal Sheth
Re Presidential Reference case
Supreme Court Advocates-on-Record Association case (2015)
Marbury v. Madison
Morrison v. Olson
Mistretta v. United States
United States of America v. Fermin Hilario
Jon E. Edmond v. United States

List of Abbreviations

A.I.R - All India Reporter

SC - Supreme Court
v. - Versus
SCC - Supreme Court Cases
J. - Justice
NJC - National Judicial Council
SCR - Supreme Court Review
Para - Paragraph
OPD - Office of Policy Development
FBI - Federal Bureau of Investigation
ABA - American Bar Association
U.S.C. - United States Cases

I.

Introduction

The Executive and the Judiciary, as organs of Government, are very vital in essence,
essential in existence and sine qua non for a democratic set up. The two organs of are
seemingly at logger heads with each other over past few decades. Though it is an undeniable
fact that, howsoever indomitable, the will or obstinacy of the one of them cannot annihilate the
other, the history of judicial appointments has not been frictionless during the last four
decades. In a Constitution that divides powers between the Centre and the States, disputes with
respect to such division are expected and experience shows that such disputes are quite

common.1 The framers of the Indian Constitution wisely built into it checks and balances in
order to bring about a harmonious balance in the powers and responsibilities of the three
branches of the government. They knew that in a democratic set up, the absence of such a
balance, or the distortion and even perversity resulting therefrom, would render effective
governance an impossibility.
Judges have, of course, the power, though not the right, to ignore the mandate of a
statute, and render judgment in despite of it. They have the power, though not the right, to
travel beyond the walls of the interstices, the bounds set to judicial innovation by precedent
and custom. None the less, by the abuse of power, they violate the law2
Judiciary is particularly looked upon by the people to maintain and preserve the
equilibrium by its interpretation of various laws and decisions on the legality and
constitutionality of the exercise of their functions by various authorities, in cases coming
before it. Though under the Indian Constitution the polity is dual, the Indian judiciary unlike
United States of America which is dual (consisting of Federal and State courts) is integrated
which can interpret and adjudicate upon both the Central and State laws. The structure of the
judiciary in the country is pyramidal in nature. At the apex of this pyramid, is the Supreme
Court, which is the final court of appeal. Although most of the States have a High Court of
their own, some States have common High Courts also like, Punjab and Haryana High Court.
The appointment of the Judges of the Supreme Court and their removal are governed by
Article 124 of the Constitution of India. Articles 125 to 129 provide for other incidental
matters and provisions like salaries, appointment of ad hoc judges etc. The appointment and
removal of the Judges of the High Courts are governed by Article 217. Articles 218 to 221 and
223 to 224A provide for certain other matters incidental thereto.
The issue of appointment and removal of judges in India has been in controversy since
long time and has been a matter of debate amongst the legislature, executive and judiciary in
the recent past. The present position as to the process of appointment of judges is the
consequence of various judicial interpretations laid down in Judges cases I, II and III - S. P.
Gupta vs. Union of India3, Supreme Court Advocates-on-Record Association vs. Union of
India4 and Special Reference No.15 respectively. The effect of these judgments resulted in the
evolution of a new trend which saw a departure from the established existing system of
1 V. N. Shuklas Constitution of India, Mahendra Pal singh, Twelfth edition, page 502
2Benjamin N. Cardozo, The Nature of the Judicial Process, Yale University Press,1921,pp. 129 and 135
3 AIR 1982 SC 149
4 (1993) 4 SCC 441; AIR (1994) SC 268

process appointment of judges which prevailed till the year 1981.Till then the process of
appointment of judges were practically made by the executive in consultation with the
judiciary and it played a dominant role. But doubts were raised as to the primacy of the
opinion of the executive since then as to the process of appointment of judges which led to
some startling judicial serving at present the practical module for judicial appointments. None
of these interpretations was in consonance with the express constitutional provisions, thereby
keeping the process of appointment of Judges vague in practice and devoid of transparency.
There is a telling need to introspect into the working and effectiveness of this mechanism,
together with the fact that a relevant legislation in this matter was recently declared ultra vires
by the Supreme Court.
This project work attempts to make a comparative analysis of the process of
appointment and removal of judges with its counterpart United States of America as both
federal nations have certain common features in their respective written constitution,
independence of judiciary being the most important one. The comparative analysis is made
with an objective to analyse the existing system of process of appointment of judges in both
countries and to suggest more transparent and effective process for appointment of judges in
India in the light of the said comparative analysis which ensures just, fair and efficient judicial
process in the administration of justice
The project would also critically examine the Judges cases I, II and III and the
possibility for reconsideration of those cases which are the law of land as to the process of
appointment of judges. While the method of selection to subordinate judiciary has not evoked
any controversy, the method of appointment to and more particularly the actual manner in
which appointments were made to the High Courts and the Supreme Court has been a subject
matter of good amount of controversy, whether before the decision in S.P. Gupta or thereafter
and even after the 1993 decision of the Supreme Court in Supreme Court Advocates-onRecord Association.
The project would also discuss briefly how far and to what extent independence of
judiciary and power of judicial review as one of the basic structure of the Indian
Constitution influence the process of appointment of judges in India.
Present position
It is known that the present position as to the process of appointment of judges in
India is the consequence of Judges Cases I, II and III, and IV Case the law governing
appointment of judges in India which departs with the text of Article 124(2) and Article
217 of the Indian Constitution and is criticized by saying that it has made the Supreme
Court and High Court totally undemocratic. Secondly, the project would also analyse the
5 Special Reference No.1 of 1998,RE (1998) 7 SCC 739

feasibility of other alternative methods of appointment of judges in India which ensures

judicial independence and public confidence in judiciary. The controversy as regards
appointment of judges is that while the decision in the S.P. Gupta was criticized for
upsetting the existing situation by vesting the power of appointment in the executive and
by diminishing the importance of the Chief Justice of India and the judiciary, the 1993
decision in Supreme Court Advocates on Record Association case is criticized for
precisely the opposite reasons. It is said, by the critics of the 1993 decision, that in a
democracy accountability is an important consideration and the authority or authorities
making such appointments should be accountable to the people. The debate is not yet
over and perhaps may never be. The formula laid down by the Constitution makers in
Articles 124(2) and 217(1) of the Constitution was drafted after considering all possible
alternatives which would avoid criticism in future. Though, of course, ever since the
commencement of the Constitution from time to time doubts have been expressed on the
operation of the formula, no agreed alternative to it has yet been found. In view of the
interpretation given to the formula by the Supreme Court in the Judges Case, the wisdom
of its continuation underwent severe scrutiny and suggestions came either for the
overruling of the interpretation of the formula or its replacement by a National Judicial
Commission for recommending to the President appointment of the Supreme Court and
High Court judges. Since the Court overruled the Judges Case in the Second Judges Case
and affirmed the overruling in the Third Judges Case, no exercise to change the original
constitutional formula is either in operation or under serious consideration, but the same
is criticized for giving primacy to the Chief Justice of Indias opinion over the
executive and also for making the consultation process cumbersome by introducing the
system of collegium as the same is not provided in the Constitution. The said question
was placed for decision before the larger bench of nine judges in Second Judges case (as
re-affirmed in III Judges Case) from the decision in Subhash Sharma v. Union of India 6
which had already criticized the opinion of judges in S.P.Guptas case and laid ground
for its over-ruling. Now the Fourth Judges Case has cleared all the persisting doubts for
the time being, but not all the ambiguities and concerns.
A plethora of content has been jotted down in by intelligentsia and legal
luminaries about the nature of the mechanism to be adopted for judicial appointments.
Much ink has flowed even in the opinion that the best method is not to fiddle with the
present mechanism of collegium system. Prof. V. N. Shukla 7 believes that a judicial body
6AIR 1991 SC 361
7 V. N. Shuklas Constitution of India, Mahendra Pal singh, Twelfth edition, page 502

which is able to act impartially and independently is needed. The Supreme Court
interpretations are diverse in themselves with every changing case. In A. K. Roy v.
Union of India8, the Court observed that it is now a well-accepted Constitutional
proposition that even though the Constitution does not provide for a clear cut separation
of three powers, as is done in the US Constitution, the judicial power cannot be passed
over to or shared with the executive and the legislature. G N Joshi believes that the
nature of consultation is obligatory and cannot be done away with. According to him,
there are apparent and glaring loopholes in the system. Subhash C Kashyap opines that
the requirement of consultation is merely a cosmetic one, and need not be implicative.
So, if the President meets the prerequisite of consultation, and subsequently differs from
such consultation, or acts on his own whim, he has not made a breach of the
Constitution.

W H Morris holds a contrary view in the sense that he observes a

communal and regional element involved in the executive opinion in the matters of
appointment. He believes that there should be a total revamp of the mechanism. The Law
Commission Reports (79 and 114) also suggested for sweeping changes, which resulted
in the birth of NJAC. However, the Apex Court viewed it as an encroachment upon
judicial sphere of exercise.

II.

Constitutional Scheme for Judicial Appointments

Under the Constitution the mechanism for the appointment of the Supreme Court and
the High Court judges has been provided under Articles 124 and 217 respectively. The
makers of our Constitution had surely considered the arguments from every shade of
intellectual class and, hence, they provided for some checks on the Presidential power of
choosing the judges. So, Articles 124(2) and 217(1) enjoin that the President must,
before making such appointments, consult with some judges of the Supreme Court and
high court and, in some cases, consultation with the Chief Justice of India or the Chief
Justice of the relevant High Court has been made obligatory. Judges of the Supreme
Court and High Courts are appointed by the President under Articles 124(2) and 217 of
the Constitution. The President is required to hold consultations with such of the judges
of the Supreme Court and of the High Courts as he may deem necessary. Article 124(2)
says: Every Judge of the Supreme Court shall be appointed by the President by warrant
under his hand and seal after consultation with such of the Judges of the Supreme Court
and of the High Courts in the States as the President may deem necessary for the purpose
and shall hold office until he attains the age of sixty-five years. Provided that in the case
8 AIR 1982 SC 710

of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall
always be consulted. And Article 217: Every Judge of a High Court shall be appointed
by the President by warrant under his hand and seal after consultation with the Chief
Justice of India, the Governor of the State, and, in the case of appointment of a Judge
other than the Chief Justice, the Chief Justice of the High Court.

III.

National Judicial Appointments Commission: A Critique

An assessment of the new law for the appointment of judges, which was proposed
and subsequently declared void by the Supreme Court of India in Supreme Court
Advocates-on-Record Association v. Union of India9 was criticised so as being invasive
upon the judiciary and thereby making it subservient to the executive which threw a
fundamental challenge to the Constitution and Indian democracy. The Bench, led by
Justice J S Khehar, held as ultra vires the 99th Constitutional Amendment Act and the
NJAC Act, which had proposed that appointments be done by a six-member body,
headed by the Chief Justice of India, and including two senior most SC judges, the
Union Law Minister and two eminent persons. These two (eminent persons) would be
selected by a panel including the Prime Minister, the CJI and the leader of the largest
Opposition party in the Lok Sabha. The NJAC was established by amending the
Constitution [Constitution (Ninety-Ninth Amendment) Act, 2014] passed by the Lok
Sabha on August 13, 2014 and by the Rajya Sabha on August 14 2014. Alongside, the
Parliament also passed the National Judicial Appointments Commission Act, 2014, to
regulate the NJACs functions. Both Bills were ratified by 16 of the State legislatures
and the President gave his assent on December 31, 2014. The NJAC Act and the
Constitutional Amendment Act came into force from April 13, 2015. Even before the ink
would have been dry on the two bills, petitions have been filed in the Supreme Court
challenging their constitutionality on the ground that they have violated the basic
structure of the Constitution. The petition filed by the Supreme Court Advocates-onRecord Association stated that Parliament does not have the power to change the basic
structure of the Constitution which it has done and hence the government should be
restrained from sending the amendment bill to the states for ratification. The NJAC Bill
was also challenged on the ground that when it was introduced, Article 124 10 and Article
217 were in full force and effect and no legislation can go contrary to the Constitution.
The petition challenging the constitutional amendment stated that the two bills destroy
the separation of powers and undermine the independence of the judiciary. In plain
9 AIR 2015

language, this means that the executive can determine the composition of the judiciary,
making it an institution appointed by the executive. Given that in our system, laws made
by the executive can be challenged in front of the judiciary, it is imperative that judges
are not dependent on the executive for their appointment. It was obvious that under the
new dispensation, the government could veto the appointment of judges they consider
unfriendly to them.
V. Judicial Appointments
a. Background
During the discussions in the Constituent Assembly on the appointment of judges
of the Supreme Court, three main proposals had come up for consideration:
I: that the President should make appointments with the concurrence of the CJI;
II:

that appointments should be subject to confirmation by 2/3rd vote by

Parliament; and
III: that they should be appointed in consultation with the Council of States (Rajya
Sabha).
Dr. Ambedkar in his reply to the discussions had firmly ruled out any involvement
of the legislature in judicial appointments on the ground that it would be very
cumbersome and would lead to political pressures. On the question of appointments with
the concurrence of the CJI, Dr Ambedkar had said "to allow the CJI practically a veto
upon appointment of judges is really to transfer the authority to the Chief Justice, which
we are not prepared to vest in the President or the government of the day." As regards
appointment by the President, Dr Ambedkar had explained that it would be after
consultation with persons who are ex-hypothesis well qualified to give proper advice in
such matters. The decision finally taken [Article 124(2)] was for appointment by the
President "after consultation with such of the judges of the Supreme Court and of the
high courts in the state as the President deems necessary for the purpose." This procedure
had worked fairly satisfactorily till 1993 when the Supreme Court interpreted the words
"after consultation" to mean "with the concurrence" of the Court and the government of
the day chose not to seek a review of this decision by a larger bench. After this the role
10 Article 124. Establishment and constitution of Supreme Court: (1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a
larger number, of not more than seven other judges. (2) Every Judge of the Supreme Court shall be appointed by the President by warrant under the hand and seal after consultation with such of the
Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purposes and shall hold office until he attains the age of 65 years: Provided that in the
case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted: Provided further that (a) a Judge may, by writing under his hand addressed to the
President, resign his office; a Judge may be removed from his office in the manner provided in clause (4)

of the executive at the Central and state levels became marginal and the decision on the
appointment of judges today rests de facto with the judges themselves.
Since 1950, judges have been appointed by the government in consultation with
the Chief Justice of India (CJI). For the first two decades, there was a near consensus
between the government of the day and the CJI. In 1981 the question arose whether
Consultation referred to in Articles 124(2) and 217(1) with the CJI meant
concurrence in which case the recommendations of the judiciary would be binding on
the government. In the S P Gupta case decided in 1981, the Court held by a majority that
the recommendations of the CJI were not binding on the Government. Once this decision
was rendered, the government obtained a licence to disregard the recommendations of
the judiciary. While this was a literal interpretation of the word consultation, it had
devastating political consequences. It appears the recommendations made by the CJI
were not accepted as an invariable rule; change was on the cards. The prime initiators for
change in the method of appointment of judges have always been the lawyers. In
hindsight it seems almost logical since it is they who end up as chief justices of the high
courts and of the Supreme Court. Judges of these courts are invariably sons of former
judges or sons of lawyers practising at the bar.
b. Constitutional Mechanism and Intellectual Perspective
Under the Constitution the mechanism for the appointment of the judges of the
Supreme Court and the High Court has been provided under Articles 124 and 217
respectively and the same has been discussed earlier. The makers of our Constitution had
surely considered the arguments from every shade of intellectual class and, hence, they
provided for some checks on the Presidential power of choosing the judges. So, Articles
124(2) and 217(1) enjoin that the President must, before making such appointments,
consult with some judges of the Supreme Court and high court and, in some cases,
consultation with the Chief Justice of India or the Chief Justice of the relevant High
Court has been made obligatory.11 It is claimed that these provisions have modified, to a
large extent, the presidential authority in the nomination of the judges. 12 As B R
Ambedkar, the chief architect of the Constitution, observed, The provision in the article
is that there should be consultation of persons who are, ex-hypothesis, qualified to give
advice in matters of this sort.13 Yet there are some loopholes in the whole arrangement.
11 G N Joshi, The Constitution of India, p 152
12 D D Basu, Introduction to the Constitution of India, p 249
13 C A D, Vol VIII, p 258

First, Article 124(2) and 217(1) stipulate that the President will nominate the judges
after consultation with some jurists and judges of his own choice and this is
mandatory.14 But these provisions do not, by any means, indicate that he must abide by
the suggestions of such persons. In other words, if he does not seek their opinion, he
would surely violate some statutory provisions, but if he merely consults them, and then,
makes his own choice, it does not at all bring a breach to the Constitution. 15 This is,
obviously, a drafting contrivance which, ultimately, makes him the final authority in
choosing the judges. As such, politics has sufficient scope to play its vicious part in the
matter of judicial appointments and, as the President is normally guided by the Prime
Minister, the ruling party is sure to thrive by such constitutional lacunae.

Secondly, the

report of our Law Commission reveals that communal and regional consideration and
even executive influence have often influenced the executive decision in the appointment
of judges.16 While quality should have been the single and sole criterion in this matter,
such external factors have sometimes lamentably affected the legitimacy of the
presidential choice. It actually runs counter to the ethics of justice in an ugly manner and
makes the judiciary an adjunct to the executive organ. Thirdly, sometimes the intentions
of the Constitution-makers have been frustrated by some clever measures. It is true that
the letter of the Constitution has been observed in consulting the Chief Justice on the
appointment of the high court judges, but its spirit has been tacitly neglected because the
Chief Justices have often given into wishes of the Chief Ministers. The Law Commission
has also noticed that for these reasons, sometimes the best legal talents of the high court
have not found their way towards the apex court. 17 Then, on occasions, even active
politicians have, after electoral defeat, been sent to the high court bench. Such incidents
have surely undermined the image of the judiciary which is supposed to remain above
politics. Above all, there are instances of unlawful appointment to the high court bench.
Under Article 217(1), to be eligible for such appointment, a person must either:
(i)
(ii)

have, for at least 10 years, served in a judicial office, or

have, for the same length of years, pleaded before a court of law as a professional
jurist.

14 G S Pandey, Constitutional Law of India, p 295

15 S C Kashyap Our Constitution, p 195
16 W H Morris, Jones, Government and Politics in India, p 241
17 Ibid, p 241

But N Srivastava, an IAS officer, was once appointed to the Guwahati High Court
by repudiating this provision and, hence, the Presidential order of appointment was, most
disgracefully, invalidated by the Apex Court. For all these reasons, the new proposal of
setting up a judicial commission for modifying the Presidential authority of choosing the
judges of the Superior Courts is really praiseworthy. As such, the commission will
prepare a panel from which the president would make the final choice. As such, his
choice would strictly remain within the list prepared by the commission and, naturally,
politics and justice would remain dissociated. It is to be realised that the judiciary is, in
fact, the cornerstone of the nation and, hence, it must be constituted as a temple of
justice. The fact is that in recent years the judiciary has, for some cogent reasons, largely
expanded its sphere of action. Particularly, the Supreme Court has assumed an
unprecedented role in order to make up the deficiencies of other organs of government.
Though it is often criticised in some quarters as judicial activism, it has, obviously,
made a beneficial contribution to Indian society. Moreover, by accepting Public Interest
Litigations, it has remedied various evils where the affected persons could not, due to
financial incapacity, move the court for a needed redress. 18 In this way, the Apex Court
has now become the most important citadel of democracy and rule of law.19 Whatever
might be the opinion of constitutional experts, it can, by no means, be denied that the
people have happily accepted this extended role of the judiciary. Sometime back,
Hidayatullah J, the former Chief Justice of India, held, The citizens expect the courts to
supply the deficiencies in our society. They certainly look to the courts for the redress of
any grievances they may have.20 As such, the judges should be so chosen that the public
may have the best regards for and abounding faith in them. Even George H Gadbois, a
foreign writer, has felt that judges in India are highly esteemed by the people. As he
writes, More than any other segment of this elite, they are viewed as the examplers of
honesty and dignity.21 By choosing the best legal talents, this respect and faith need to
be enhanced. However, a proper choice in the recruitment of the judges may improve the
judicial system in another way. H R Khanna, a former judge of the Supreme Court, has
rightly pointed out that an able judge can deliver his verdict in far less a time than now
required by his inept colleagues. Thus, by choosing the most capable person, the judicial
18 B R Agarwala, Our Judiciary, p 174
19 H H Das, India: Democratic Government and Politics, p 224
20 Democracy in India and the Judicial Process, p 53
21 Indian Judicial Behaviour, Economic and Political Weekly, annual number, November 1970.

settlement may be made a prompt, proper and cheap affair. The proposed measure of
making a panel by the chosen jurists for the consideration of the president would also
prohibit any scope of political patronisation in the appointment of the judges. For all
these reasons, the proposal for a change in the method of appointment of judges of the
superior courts is really praiseworthy and its implementation brooks no delay. It is a
cardinal truth that judiciary holds a unique place in the political system and that the
independence of the judges is really the cornerstone of democracy. 22 This is why, the
founding fathers of the Constitution have provided some necessary measures for the
creation of an efficient judicial system. As M V Pylee writes, The Constitution of India
envisages an independent judiciary.23 In fact, the superior courts have been vested with
tremendous power and various responsibilities. Particularly, the Supreme Court has been
expressly called upon to act as the final interpreter and guardian of the Constitution. 24
But, if the judges are not properly chosen, it is sure to affect the independence and
dignity of the judiciary. This is why, our Constitution has inserted the necessary
provisions in order to avoid the political pressure put by ministers on the presidential
authority of choosing the judges.25 Yet, it has often been argued that sometimes political
factors have determined presidential choices. As J C Johari puts it, the nomination of a
judge is virtually a political affair.26 Similarly, M M Singh holds that sometimes
extraneous considerations have been found to be operative in such matters. 27 Such
judicial appointment surely strikes at the very basics of democracy and rule of law.
Before making judicial appointments, the president should consider only the legal
erudition and personal integrity of the incumbent appointment of a person of some
political belief surely defies the letters and spirit of the Constitution. 28 A reference to the
American constitutional history would surely make our point amply clear. In order to
fight out the economic evils of the Great Depression of 1929, President Franklin D
22 Sachdeva and Gupta, The Constitution of India, p 173.
23 An Introduction to the Constitution of India, p 195.
24 S C Kashyap, Citizens and the Constitution, p 32.
25 B C Rout, Democratic Constitution of India, p 162
26 Indian Government and Politics, p 711
27 The Constitution of India, p 986
28 N A Palkhivala, Our Constitution: Defaced and Defiled, p 101

Roosevelt had adopted the New Deal which was promptly invalidated by the American
Supreme Court as ultra vires of the Constitution. The people, however, realised the need
of the New Deal and wanted the President to do the needful. Encouraged by such popular
enthusiasm, he intended to enlarge the Supreme Court-bench by adding six new judges
so that the New Deal could be duly validated by a majority verdict. But the people now
realised the probable outcome of such a scheme they felt that the New Deal now might
come out, but, by the new step, the president would pack the court and would
eventually make it an adjunct to the executive. The resentment was so vehement that the
Supreme Court (Re-organisation) Bill was withdrawn in order to maintain the
independence of the judiciary. The judiciary is really the bastion of the rights, liberty and
justice.29 So, a proper recruitment policy must be adopted so that it can work rightly,
freely and with ability together with due regard to the principles of justice, equity,
fairness and impartiality.
Comparative Analysis of Judicial Appointments

A.

U.S.A (Federal and State Courts)30

The judicial system in the United States is known as dual court system, which means
both state and federal governments have their own set of courts. Thus, there are 51 separate
sets of courts in the United States, one for each state and one for the federal government.

Supreme Court
The Supreme Court is the highest court in the United States. Article III of the U.S.
Constitution created the Supreme Court and authorized Congress to pass laws establishing a
system of lower courts. In the federal court systems present form, 94 district level trial courts
and 13 courts of appeals sit below the Supreme Court. There are three levels of federal courts:
the Supreme Court, the Circuit Court of Appeals and the District Court. The Supreme Court is
the highest court in the federal judiciary. The judges of Supreme Court comprise the Chief

29 A C Kapur, The Indian Political System, p 296

30 Federal courts here refer to Supreme Court, Circuit Courts of Appeals and District Courts only

Justice and eight Associate Justices.31 Each year, the Supreme Court hears a limited number
of appeal cases which begin in the federal or state courts.32
Circuit Courts/ Courts of Appeals
There are 13 appellate courts that sit below the U.S. Supreme Court, and they are called
the U.S. Courts of Appeals. The 94 federal judicial districts are organized into 12 regional
circuits, each of which has a court of appeals. The appellate courts task is to determine
whether or not the law was applied correctly in the trial court. Appeals courts consist of three
judges and do not use a jury. A court of appeals hears challenges to district court decisions
from courts located within its circuit, as well as appeals from decisions of federal
administrative agencies. In addition, the Court of Appeals for the Federal Circuit has
nationwide jurisdiction to hear appeals in specialized cases, such as those involving patent
laws, and cases decided by the U.S. Court of International Trade and the U.S. Court of
Federal Claims.
There are one federal circuit and 12 regional circuits; each circuit has one circuit court
of appeal (13 Circuit Courts of Appeals in total). The total number of authorized judgeships in
the circuit courts is 179.33 The Circuit
Courts of Appeals hear appeals from the district courts located within its circuit.34

District Courts
The nations 94 district or trial courts are called U.S. District Courts. District courts resolve
disputes by determining the facts and applying legal principles to decide who is right. Trial courts
include the district judge who tries the case and a jury that decides the case. Magistrate judges
assist district judges in preparing cases for trial. They may also conduct trials in misdemeanor
cases. There is at least one district court in each state, and the District of Columbia. Each district
includes a U.S. bankruptcy court as a unit of the district court. Four territories of the United States

31 US Code, Title 28, Chapter 1, Section 1. Copy of the United Sates Code is available from the

32 Understanding the Federal Courts, Administrative Office of the U.S. Courts 1999, p.7-10
33 US Code, Title 28, Chapter 1, Section 41 & 44
34 Understanding the Federal Courts, Administrative Office of the U.S. Courts 1999, p.7-10

website: http://www4.law.cornell.edu/uscode/

have U.S. district courts that hear federal cases, including bankruptcy cases: Puerto Rico, the
Virgin Islands, Guam, and the Northern Mariana Islands.
Constitution, the District Courts hear nearly all categories of federal cases, including
both civil and criminal cases.35

Methods of Appointment
Section 2, Article II, the United States Constitution states:
"[The President] shall nominate, and by and with the Advice and Consent of the
Senate, shall appointJudges of the Supreme Court, and all other Officers of the United
States
Justices of the Supreme Court, judges of the Circuit Courts of Appeals and the District
Courts [i.e. included under "all other officers of the U.S." referred to in the Constitution] all
are appointed by the President of the United States with the advice and consent of the Senate.
These justices and judges are appointed for life, and they can only be removed through
impeachment by the Congress.36The President nominates candidates for justices and judges to
the Senate after he receives recommendations from the Department of Justice and his own
White House staff.
Department of Justice
The Department of Justice, which is supervised and directed by the Attorney General,
is responsible for making recommendations to the President concerning appointments to
federal judicial positions. Within the Department, the Office of Policy Development (OPD)
has primary responsibility for the judicial selection process of all Article III 37 judicial
vacancies. The staff of the OPD interview a prospective nominee in person. They ask federal
and state judges, prosecutors, and defenders as well as other attorneys and support staff about
the candidates reputation and merit for the federal bench. They also examine any articles
written by or about the candidate, and review all of the cases, news, writings, and web sites
mentioning the candidate, as well as financial disclosure statements and a physicians
evaluation of the candidates health. A questionnaire is sent to the potential candidate to
collect his or her personal data. A sample of the questionnaire is in Appendix I. The OPD
35 Understanding the Federal Courts, Administrative Office of the U.S. Courts 1999, p.7-10
36 Section 1, Article III, The US Constitution
37 Under the Article III of the United States Constitution, Justices of the Supreme Court, judges of the courts of appeals and the district courts, and judges of
the Court of International Trade, are appointed for life, and can only be removed through the impeachment process, so they are also called "Article III judges".
"Understanding the Federal Courts," Administrative Office of the U.S. Courts 1999

does not solicit the candidates personal views on constitutional interpretation or political
issues. Instead, the candidate is asked whether he or she has any views that would prevent the
candidate from following the precedents of the higher courts or from being fair and impartial
in all cases that might come before the court. If the preliminary evaluation of a prospective
nominee is positive, the candidates name will be transmitted to the Federal Bureau of
Investigation (FBI) for investigation; and to the American Bar Association (ABA), an
independent non-governmental organization, for evaluation. The FBIs investigation of
potential judicial nominees is focused on general background issues. FBI agents usually begin
their investigation by interviewing the judicial candidate to confirm the accuracy of the
candidates security questionnaire, which requires information to verify education, jobs, and
residences, as well as any background issues since the candidates eighteenth birthday. FBI
agents also interview federal and state judges and other government officials, as well as
attorneys, business and civic leaders, religious and civil rights leaders, neighbours, and
doctors. They also check for arrests and convictions, civil lawsuits, and credit history.
Additionally, a check on the candidates tax record is included in the file. The OPD has stated
that the FBI investigation is a critical component of OPDs evaluation of the candidates
suitability for the federal bench. The American Bar Association interviews judges and
lawyers in the candidates community about the candidates qualifications, including
temperament, and also interviews the candidate. At the end of the ABA process, the ABA
sends an informal piece of advice to the Department of Justice on its rating of the candidate
as well qualified, qualified, or not qualified if the President were to nominate the
candidate. If the ABA rating is positive, the FBI report is satisfactory, and the Department of
Justices evaluation is favourable overall, the Attorney General formally recommends the
nomination to the President. The White House Counsels Office works closely with the
Department of Justice in the selection of potential federal judges. Also, the Office works as
closely as possible with Senators, and also considers recommendations by Members of the
House of Representatives, state Governors, state judicial selection panels, bar associations,
government officials, and citizens.
The papers sent by the Department of Justice to the President include:38
1. A letter from the Attorney General to the President formally recommending the
nomination;
2. A memorandum from the Deputy Attorney General to a "designated" White
38

Picking Federal Judges, Sheldon Goldman, Yale University Press, 1997, p.11. Information abstracted from "Memorandum to My Successor," November

26, 1968, EX FG 50 The Judicial Branch [1969-70], WHCF, Nixon Materials Projects, p.10

House Assistant "touching on matters not in the Attorney General's formal letter"
(typically who recommended the candidate and what political clearances were
obtained);
3.

The candidate's resume or biographical sketch;

4. A summary of the FBI Report along with the complete report itself; and
5. All other file material on the candidate including the response to the personal
data questionnaire.
If the President approves the nomination, he signs it and sends it to the Senate.
Following the nomination, the Department of Justice submits the FBI Questionnaire, the
results of the FBI background investigation and the entire Senate Questionnaire to the Senate.
The Senate acts in a unicameral capacity when it confirms federal judicial nominations. As
the Constitution provides, only the Senate's "Advice and Consent" are necessary for the
appointments of Judges of the Supreme Court and all other Officers of the United States. The
House of Representatives is not involved in the process of appointment of federal judges.
Within the Senate, the consideration of appointments to judicial positions is the responsibility
of the Committee on the Judiciary.39 The Senate Committee on the Judiciary or the Judiciary
Committee consists of 18 members. Following the rule that majority party in the Senate
controls a majority of committee seats, voting results on the Committee are generally
representative of the voting preference in the full Senate. The Senate Judiciary Committee has
its own staffers to examine the background of a judicial nominee. The bulk of the
investigation is conducted by the staff of the Chairman and the minority party leader on the
Committee. The investigation involves reviewing the FBI Questionnaire, the results of the
FBI background investigation and the entire Senate Questionnaire. The Committee staffers
ask the home state Senators of the nominee for their opinion and conduct phone interview
with the nominee to clear up any ambiguity encountered in the file. Any information
discovered by the staffers will be reported to the Committee members. When the nomination
is referred by the Senate, the Judiciary Committee is authorized to hold confirmation hearing,
and to take testimony by requiring by subpoena the attendance of witnesses and the
production of correspondence, books, paper, and documents. The confirmation hearings
conducted by the Committee are open to the public, and may be broadcast by radio or
television.

39 Section (l), Senate Rule XXV stated Committee on the Judiciary, to which committee shall be referred all proposed legislation, messages, petitions, memorial, and other
matters relating to the following subjects:(5) Federal courts and judges.

The confirmation hearing of a Supreme Court Justice nominee starts by the Senate
Judiciary Committee Chairmans opening statement which is followed by endorsement of the
nominee by prominent supporters, normally home state Senators. The nominee is invited to
give an opening statement. Then, the hearing will proceed to the questioning time of the
nominee by the Senators. After the nominee has given his testimony, other witnesses may
follow and lend their support for or opposition to the nomination

Voting
After the confirmation hearing, Committee members will vote on the
nomination. The quorum of the Judiciary Committee is ten; while vote by proxy is allowed,
proxies are not counted for making a quorum. If a nomination gets a majority vote, it will go
to the Full Senate. If the Committee rejects a nomination with a majority vote, the
nomination will be returned to the President. In effect, the nomination dies. However, after
rejecting a nominee, the Committee may, if it chooses, vote to report the nomination to the
floor - but it will be with an unfavourable recommendation. When the Committee adjourns at
the end of a session, all of the nominations still pending in Committee stage will be returned
to the President.
Qualifications of a Federal Judge:
There is no statutory qualification for judicial appointment to the Supreme Court or the
lower federal courts.40
APPOINTMENT
The process of appointment of a federal judge starts from the occurrence of a judicial
vacancy. The vacancy of a judgeship may arise from death, resignation, and retirement of a
judge.41 Also, vacancies can arise from legislation creating new judicial position and
impeachmentby the

Congress

40 The US Constitution imposes no minimum age or other requirements on federal judges. As a matter of tradition, nominees usually need to have been admitted to the
practice of law for, at least, ten years. Information provided by the US Department of Justice, 4 October 2000.

41 As set forth in Title 28 of the US Code, Section 371(c), federal judges may retire at the age of 65

THE ROLE OF THE LEGISLATURE IN THE PROCESS OF APPOINTMENT OF JUDGES

In the U.S., the U.S. Congress is heavily involved throughout the process of appointment of federal
judges. This includes both selection of candidates and confirmation of nominations. The Congress's
influence in the selection of potential candidates lies in its capacity to make recommendation on potential
nominees. According to the information obtained from the Senate Judiciary Committee,42it states:
The names of potential nominees [for Supreme Court justices, court of appeals judges, and
district court judges] often are recommended by Senators or sometimes members of the House [of
Representatives] who are of the President's political party
The involvement of Senators in the process of selecting candidates for the Supreme Court and
circuit courts judicial vacancies is slightly lighter. The Supreme Court and circuit courts have
jurisdictions that span the whole nation and several states. The President therefore has greater
discretion and defers less to individual Senators when selecting nominees for the Supreme Court
and circuit courts. When a vacancy appears on the Supreme Court or a circuit court, some Senators
may seek to influence the selection of the new nominee. In such cases, the President may need to
take their recommendations into account for political reasons.

Blue Slips
Before 1979, the counsel of the Senate Judiciary Committee sent out blue slips to the two
Senators from the nominees state and if it was returned marked objection by either Senator regardless
of party, the custom was that no confirmation hearing would be scheduled. This custom was changed
after Senator Edward Kennedy became the head of the Committee. He made it clear that Senators who
withheld the blue slips of persons nominated for judgeships from their states could no longer rely on
the chairman to kill those nominations.43 At present, though negative blue slips cannot kill a nomination
customarily, it remains a common way to collect opinions of the Senators from the nominee's state.

42 From the website of the Senate Judiciary Committee, http://www.senate.gov/~judiciary/.

43 Picking Federal Judges, Sheldon Goldman, Yale University Press, 1997, p.12 and 262

ARGUMENTS AGAINST AND FOR THE CURRENT SYSTEM

In 1996, the seventh Miller Center Commission ("Miller Commission") released the "Report of the
Commission on the Selection of Federal Judges". 44 In 1997, the American Bar Association (ABA)
released the "Report of the ABA Commission on Separation of Powers and Judicial Independence". 45 The
two reports contained criticisms and arguments in support of the current system of federal judicial
appointments.
Arguments against the Current System

Major criticisms are the chronic delays in the nomination and confirmation process and the
heightened focus on ideology, which leaves the impression with the public that judges are not
independent and impartial, but ideological and partisan.
Although the Commission agreed that the Senate should play an important role in the process
of appointment of federal judges, it is of the view that the process has become increasingly
complex and prolonged:
Arguments for the Current System
Witnesses in the ABA Report were in general agreement that the President and members of
the Senate Judiciary Committee have a legitimate interest in questioning candidates for
judicial office about a variety of matters. The ABA Commission agreed that the nomination
and confirmation process is the one point at which the political branches may exercise a
44 The Miller Center is a non-partisan research center at the University of Virginia that studies the national and international policies of the United States, with a special focus on American presidents and the presidency.
Periodically, the Miller Center forms National Commissions to research and make recommendations concerning specific executive branch issues or complex problems of the presidency. The commissions are independent,
bipartisan committees made up of leaders in government, journalism, and the law. The seventh Miller Center Commission addressed problems concerning the process of appointing federal judges. The seventh Miller Center
Commission was established in October 1994 and conducted interviews with all the participants involved in the process of appointing federal judges. Please refer to the following website for the details of this report,
http://www.millercenter.virginia.edu.

45 The ABA Commission on Separation of Powers and Judicial Independence was established in August 1996. The Commission was created to study judicial independence and accountability, to evaluate a number of
events perceived by some as threatening judicial independence, and to make recommendations. The Commission received written and oral testimony from 28 witnesses in three hearings conducted in Washington, D.C. and
San Francisco, California. Please refer to the following website for the details of this report, http://www.abanet.org/govaffairs/judiciary/report.html

check on the composition and quality of the federal bench. To these ends, it is appropriate
and desirable for members of the Senate and the President to explore the qualifications,
character and judicial philosophy of would-be judges.
The ABA Commission agreed that problems arise when legitimate inquiries into a nominee's
judicial philosophy degenerate into "thinly veiled efforts to preordain how the nominee will
rule on specific issues in the future". It was agreed that protracted delays in the nomination
and confirmation process, whether by design or as a result of inefficiency, weakens the
federal judiciary and should be avoided. Therefore, the ABA has made certain procedural
recommendations and upheld the fundamental constitutional provision that the Senate should
have the opportunity to give advice and consent before a judicial nomination is confirmed.
V.
Supreme Court Interventions and Interpretations
The debate on who should appoint the judges has never really being thrown open to the public
and we as a country do not have an articulated position on this issue. In Court we are confronted
with a binary position, either independence of the judiciary or executive control. The mechanism
provided under the aforesaid Constitutional provisions ran smoothly until 1981, i.e. the First Judges
Case.
a.

First Judges Case

The case of S. P. Gupta v Union of India 46, evolved as the foundation stone of this brimming
controversy which is yet denying to die out. In this case, the Supreme Court by a majority
judgment held that the concept of primacy of the Chief Justice of India was not really to be found
in the Constitution. It held that the proposal for appointment to a High Court can emanate from
any of the constitutional functionaries mentioned in Article 217 and not necessarily from the
Chisef Justice of the High Court. The Constitution Bench also held that the term consultation
used in Articles 124 and 217 was not concurrence meaning that although the President will
consult these functionaries, his decision was not bound to be in concurrence with all of them.
The judgment tilted the balance of power in appointments of judges of High Courts in favour of
the executive. This situation prevailed for the next 12 years. This judgement effectively brought
the legislature into play in matters of judicial appointments.

46 AIR 1982 SC 149

b.

The Second Judges Case

This process of reasoning is inherent to the legal method and no nuances are allowed to
emerge nor options considered. In 1993, once again, the issue was taken to the Supreme Court
and the judgment in the S P Gupta case was overruled.47 This time a bench of nine judges held
that a collegiate opinion of a collective of judges is binding on the government. The majority
gave the following conclusions regarding appointments:
I.

All the constitutional functionaries must perform this duty collectively with a view to

II.

reach an agreed decision so that the occasion of primacy does not arise.
In case of Supreme Court, the proposal is to be initiated by the CJI and in the case of a

III.
IV.

High Court by the Chief Justice of that High Court.

In the event of conflict of opinion, the view of the CJI has primacy.
No appointment of any judge to the Supreme Court or any High Court can be made,
unless it is in conformity with the opinion of the CJI or the Chief Justice of that High

V.

Court, as the case may be.

In exceptional cases, for stated strong and cogent reasons, disclosed to the CJI,
indicating that the recommendation is not suitable for appointment, the appointment
recommended by the CJI may not be made. But, in case the CJI reiterates his
recommendation then, the appointment should be made in accordance with his

VI.

recommendation.
The senior-most judge of the Supreme Court should be appointed as CJI, if considered fit

to hold the office.

c. Third Judges Case
The Third Judges Case48 arose in 1998 when President K R Narayanan issued a Presidential
Reference to the Supreme Court over the meaning of the term consultation under Article 143
of the Constitution (advisory jurisdiction). The question was whether consultation required
consultation with a number of judges in forming the CJIs opinion, or whether the sole opinion
of CJI could by itself constitute a consultation. In response, the Supreme Court laid down 9
guidelines for the functioning of the quorum for appointments and transfers this has come to
be the present form of the collegium, and has been prevalent ever since. This opinion laid down
47 ibid
48 AIR 1999 SC 1

that the recommendation should be made by the CJI and his four seniormost colleagues, instead
of two. It also held that Supreme Court judges who hailed from the High Court for which the
proposed name came, should also be consulted. It was also held that even if two judges gave an
adverse opinion, the CJI should not send the recommendation to the government.
The judgment established the primacy of the judiciary in the matter of making appointments. It
appears that the collective of judges was not able to take decisions in the spirit of a collegium
and this led to a presidential reference under Article 143 to the Supreme Court for an advisory
opinion on the appointment of judges, the method relating to the consultation between the CJI
and his brother judges in the matter of appointment of judges, and the relevance of seniority in
appointing the chief Justice and the other judges. The Supreme Court rendered an opinion
reiterating that the CJI has plenary powers in the consultative process. The nine judges bench
opined:
I.

The opinion of the CJI, having primacy in the consultative process and reflecting the
opinion of judiciary, has to be formed on the basis of consultation with the collegium,
comprising of the CJI and the four senior most Supreme Court judges. The judge, who is
to succeed the CJI should also be included, if he is not one of the four senior most judges.

II.

Their views should be in writing.

Views of the senior most judges of the Supreme Court, who hail from the High Courts
where the person to be recommended are functioning as judges, if not part of the

III.

collegium, must be obtained in writing.

The recommendation of the collegium along with the views of its members and that of
the senior most judges of the Supreme Court who hail from the high court where the
persons to be recommended are functioning as judges should be conveyed by the CJI to

IV.

the Government of India.

The substance of the views of the others consulted by the Chief Justice of India or on his
behalf, particularly those of non-judges (members of the Bar). Should be stated in the

V.

memorandum and be conveyed to the Government of India.

Normally, the collegium should make its recommendation on the basis of consensus but

VI.

in case of difference of opinion no one should be appointed, if the CJI dissents.

If two or more members of the collegium dissent, the CJI should not persist with the
recommendation.

VII.

In case of a non-appointment of the person recommended, the materials and information

conveyed by the Government of India, must be placed before the original collegium or
the reconstituted one, if so, to consider whether the recommendation should be
withdrawn or reiterated. It is only if it unanimously reiterated that the appointment must
be made.
The CJI may, in his discretion, bring to the knowledge of the person recommended the

VIII.

reasons disclosed by the Government of India for his non-appointment and ask for his
response thereto, which, if made, be considered by the collegium before withdrawing or
reiterating the recommendation.
d. The Fourth Judges Case
In 2008, the Law Commission Report gave rise to the debate on whether the system of judges
appointments themselves was a good one. It pointed out that in other countries, the executive is
either the sole authority to appoint judges, or it appoints judges in consultation with the Chief
Justice. Saying that the second judges case had completely eliminated the role of the executive,
it said, It is time the original balance of power is restored. After persistent demands and the
recommendations of the 214th Law Commission Report, the legislature brought two enactments
in the form of the 99th Constitution Amendment Bill and the NJAC Act, 2014. The Supreme
Court in this case49 declared the Amendment and the Act as invalid and ultra vires by a majority
of 4:1.
Khehar J. concluded in his 400+ page judgment:
Page 436: Article 124A (1) provides for the constitution and the composition of the National
Judicial Appointments Commission (NJAC). Its perusal reveals that it is composed of the
following:
(a) the Chief Justice of India, Chairperson, ex officio;
(b) two other senior Judges of Supreme Court, next to the Chief Justice of India Members, ex
officio;
(c) the Union Minister in charge of Law and Justice Member, ex officio;
49 Supreme Court Advocates-on-Record Association v Union of India (2015)

(d) two eminent persons, to be nominated Members.

If the inclusion of anyone of the Members of the NJAC is held to be unconstitutional,
Article 124A will be rendered nugatory, in its entirety. While adjudicating upon the merits of the
submissions advanced at the hands of the learned counsel for the rival parties, I have arrived at
the conclusion, that clauses (a) and (b) of Article 124A(1) do not provide an adequate
representation, to the judicial component in the NJAC, clauses (a) and (b) of Article
124A(1) are insufficient to preserve the primacy of the judiciary, in the matter of selection
and appointment of Judges, to the higher judiciary (as also transfer of Chief Justices and Judges,
from one High Court to another). The same are accordingly, violative of the principle of
independence of the judiciary.
I have independently arrived at the conclusion, that clause (c) of Article 124A(1) is ultra
vires the provisions of the Constitution, because of the inclusion of the Union Minister in
charge of Law and Justice as an ex officio Member of the NJAC. Clause (c) of Article
124A(1), in my view, impinges upon the principles of independence of the judiciary, as well
as, separation of powers.
It has also been concluded by me, that clause (d) of Article 124A(1) which provides for the
inclusion of two eminent persons as Members of the NJAC is ultra vires the provisions of
the Constitution, for a variety of reasons. The same has also been held as violative of the basic
structure of the Constitution. In the above view of the matter, I am of the considered view, that
all the clauses (a) to (d) of Article 124A(1) are liable to be set aside. The same are, accordingly
struck down. In view of the striking down of Article 124A(1), the entire Constitution (99th
Amendment) Act, 2014 is liable to be set aside. The same is accordingly hereby struck down in
its entirety, as being ultra vires the provisions of the Constitution.
Since Articles 124A and 124C have been set aside, as a natural corollary, the National Judicial
Appointments Commission Act, 2014 is also liable to be set aside, the same is accordingly
hereby struck down. In view of the above, it was not essential for us, to have examined the
constitutional vires of individual provisions of the NJAC Act. I have all the same, examined the

challenge raised to Sections 5, 6, 7 and 8 thereof. I have concluded, that Sections 5, 6 and 8 of
the NJAC Act are ultra vires the provisions of the Constitution.
Chelameswar J, who gave the

dissenting judgment, listed a number of cases where the

collegium had failed, and concluded in his dissent:

Page 567: The two members of the NJAC can override the opinion of the other four and stall the
recommendation. I do not find anything inherently illegal about such a prescription. For the
purpose of the present case, I do not even want to embark upon an enquiry whether the
constitutional fascination for the basic structure doctrine be made a Trojan horse to penetrate the
entire legislative camp. For my part, I would like to examine the question in greater detail before
answering the question. There are conflicting views of this Court on this proposition. 197 In my
opinion, such an enquiry is not required in this case in view of the majority decision that the
AMENDMENT is unsustainable.
For all the above mentioned reasons, I would upheld the Amendment. However, in view of the
majority decision, I do not see any useful purpose in examining the constitutionality of the ACT.
Only an independent and efficient judicial system can create confidence in the society which it
serves. The ever increasing pendency of matters before various CONSTITUTIONAL COURTS
of this country is clearly not a certificate of efficiency. The frequency with which the residuary
jurisdiction of this Court under Article 136 is invoked seeking correction of errors committed by
the High Courts, some of which are trivial and some profound coupled with bewildering number
of conflicting decisions rendered by the various benches of this Court only indicate that a
comprehensive reform of the system is overdue. Selection process of the Judges to the
CONSTITUTIONAL COURTS is only one of the aspect of such reforms. An attempt in that
direction, unfortunately, failed to secure the approval of this Court leaving this Court with the
sole responsibility and exclusive accountability of the efficiency of the legal system. I only part
with this case recollecting the words of Macaulay reform that you may preserve 198 . Future
alone can tell whether I am rightly reminded of those words or not.
VII.

Remedial Mechanism

The Second Judges case made it mandatory for the Chief Justice of India to take the
opinion of other judges and also left it open to the Chief Justice of India to consult persons other
than judges in this regard. The opinion of the Chief Justice of India ceased to be an individual
opinion (as per the desire of Dr. Ambedkar) but became a collective or institutional opinion,
there being a great deal of difference between the two. However, the 99 th Constitution
Amendment Act and the NJAC Act have considerably limited and curtailed the authority of the
Chief Justice of India (both individually as well as institutionally) and the Chief Justice of India
is now precluded from taking the opinion of other judges or of any person outside the NJAC. The
Chief Justice of India has been reduced to an individual figure from an institutional head.
Dr. Ambedkar was not prepared to accept the opinion of the Chief Justice of India (as an
individual) as the final word in the appointment of judges. This is because the Chief Justice of
India has frailties like all of us. The apprehension of Dr. Ambedkar was allayed by the Second
Judges case and the Third Judges case which made it mandatory for the Chief Justice of India to
express a collective opinion and not an individual opinion. The collective and unanimous opinion
(duly reiterated if necessary) would bind the President being the collective and unanimous
opinion of persons who were ex hypothesi well qualified to give proper advice in matters of this
sort. However, the 99th Constitution Amendment Act and the NJAC Act reversed the process
well thought out in the Second Judges case and the Third Judges case and have taken away the
constitutional authority of the Chief Justice of India and placed it on a platter for the NJAC to
exploit. Given our constitutional history, the established conventions, the views of various
committees over the last seventy years and the views of scores of legal luminaries beginning
with Mr. Motilal Setalvad, the throes through which the judiciary has gone through over several
decades and the provisions of our Constitution, the Court in the Fourth Case observed that
Article 124A as introduced in the Constitution by the Constitution (Ninety-ninth Amendment)
Act, 2014 impinges on the independence of the judiciary and in the matter of appointment of
judges (which is a foundational and integral part of the independence of the judiciary) and alters
the basic structure of the Constitution. However, all the judges, unanimously, pushed strongly for
a consultation to improve the collegium system. The faults and lacuna of the prevailing system
was itself admitted by the Court in its judgment:

All told, all was and is not well. To that extent, I agree with Chelameswar, J. that the
present Collegium system lacks transparency, accountability and objectivity. The trust deficit has
affected the credibility of the Collegium system, as sometimes observed by the civic society.
Quite often, very serious allegations and many a time not unfounded too, have been raised that
its approach has been highly subjective. Deserving persons have been ignored wholly for
subjective reasons, social and other national realities were overlooked, certain appointments
were purposely delayed so as either to benefit vested choices or to deny such benefits to the less
patronised, selection of patronised or favoured persons were made in blatant violation of the
guidelines resulting in unmerited, if not, bad appointments, the dictatorial attitude of the
Collegium seriously affecting the self-respect and dignity, if not, independence of Judges, the
court, particularly the Supreme Court, often being styled as the Court of the Collegium, the
looking forward syndrome affecting impartial assessment, etc., have been some of the other
allegations in the air for quite some time. These allegations certainly call for a deep introspection
as to whether the institutional trusteeship has kept up the expectations of the framers of the
Constitution. Though one would not like to go into a detailed analysis of the reasons, I feel that it
is not the trusteeship that failed, but the frailties of the trustees and the collaborators which failed
the system. The Court opined that the situation is curable tough the existing system was not
adequately remedial, yet it continued to be a lesser evil.
VIII.

Conclusion and Suggestions

In The Supreme Court Advocates-on-Record Association Vs Union of India50 a nine-judge

Constitution Bench overruled the decision in S P Gupta and devised a specific procedure called
Collegium System for the appointment and transfer of judges in the higher judiciary.
Underlining that the top court must act in protecting the integrity and guarding the
independence of the judiciary, the majority verdict accorded primacy to the CJI in matters of
appointment and transfers while also ruling that the term consultation would not diminish the
primary role of the CJI in judicial appointments.
The role of the CJI is primal in nature because this being a topic within the judicial family, the
executive cannot have an equal say in the matter. Here the word consultation would shrink in a
50 SC Advocates-on-Record Association vs Union of India, (1993) 4 SCC 441: AIR 1994 SC 268-9 Judges

mini form. Should the executive have an equal role and be in divergence of many a proposal,
germs of indiscipline would grow in the judiciary, it held.
Ushering in the collegium system, the court said that the recommendation should be made by
the CJI in consultation with his two seniormost colleagues, and that such recommendation should
normally be given effect to by the executive. It added that although it was open to the executive
to ask the collegium to reconsider the matter if it had an objection to the name recommended, if,
on reconsideration, the collegium reiterated the recommendation, the executive was bound to
make the appointment.
There being no definition of who an eminent person is under the new Act, the law seemingly
suffered from grave infirmities. If past experience is anything to go by, these could be lawyers or
former judges. It is the function of this commission to recommend judges for appointment to the
Supreme Court and the High Courts. There was no system in place for judging ability and the bill
does not define it either. Most importantly, if any two members of the Commission do not agree
with a particular recommendation, the person cannot be appointed. Section 5 of the Act stated,
Provided further that the Commission shall not recommend a person for appointment if any two
members of the Commission do not agree for such recommendation. This provision effectively
gave, to the executive, a veto over the nomination made by the judiciary, as the law minister and
one of the eminent persons can stop the appointment of a judge. The criterion for appointment of
a judge is ability, merit, or any other criteria specified by regulations. Notoriously, it is the
criteria of merit that has always kept out underprivileged sections of society, with no godfather,
from being appointed to public service. It is only a provision for affirmative action that can
correct this imbalance of representation in public service. Judiciary which is supposed to be
independent of the executive control, is the only institution to which we can turn to question antipeople laws. Those of us who supported the idea of an independent Commission, find ourselves
in a bind, not wanting a return to the collegium and not wanting these bills. The current
controversy has serious consequences for what we understand to be constitutional governance
and the available at basic features of the Constitution. There can hardly be any doubt that
regardless of which government is in power, the judiciary has to be representative of the
aspirations of the people of this country, rather than of the ideology of the ruling party. Perhaps
the issue itself independence versus executive control is falsely posed. There are other issues

which are of great moment. What does one understand by independence of the judiciary; does
it mean that the person has no political affiliations; how are these to be known, by party
membership or ideology? But then, how does one discover the ideology of the judge? The even
more important, the question of the accountability of Judges remains unaddressed. What was
needed was public participation in the matter of appointment of judges and equal opportunity to
become a judge. The system of nominations by the executive or the judiciary must be put an end
to, instead, those who consider themselves eligible must be permitted to send an expression of
interest making it possible for that persons antecedents to be evaluated. If the government of the
day wanted to have the last word in the appointment of judges, they could have chosen the path
of confirmation by Parliament with a full debate on the ideology of the nominee in Parliament.
Only such a method would give legitimacy to political appointments. If on the other hand, the
appointments are to be made by the judiciary we cannot go back to the collegium, we need
transparency and equal opportunity. Therefore, in order to escape this unnerving situation,
judiciary has aptly stepped in and at the right moment. However, there is a need for total revamp
of the mechanism with a high regard to the essence of separation of powers and the
independence of judiciary.

IX.

Bibliography
Books:

H.M.Seervai, Constitutional Law of India, Fourth ed. vol.iii, chapter xxv, p.2613,
Universal Law Publishing Co.Pvt.Ltd.

V. N. Shuklas Constitution of India, Mahendra Pal Singh, Twelfth Edition, Eastern Book
Publication.

A.G.Noorani, Constitutional Questions and Citizens Rights, 2006, Oxford Publication.

Benzamin.N.Cardozo, The Nature of Judicial Process, Yale University Press., 1921,

pp129 and 135.

Dr. Ranbir Singh & Dr. A Laxshminath, Constitutional Law, LexisNexis Butterworths
Student Series.

The History, Philosophy and Structure of the American Constitution, second edition,
LexisNexis Publications.

Arvind .P.Dattar, Commentary on the Constitution of India, 2nd Edition, 2007, vol-I,
Wadhwa and Nagpur Publication.

M.V.Pylee, Constitutions of the World, 3rd Edition, vol-I, Universal Law Publications.

V. Bhagwan, World Constitution 6th revised edition, Sterling Publishers Private Ltd.

B.Shiva

Rao,

The

Framing

of

the

Indian

Constitution,

edited

by

Dr.Subhash.C.Kashyap.

Norman Redlich,John Atlanasio, and Joel.K.Goldstein, Constitutional Law, Second

Edition,LexisNexis Publication.

Craig R.Ducet, Constitutional Interpretation, Eight Edition, Thomson and West

Publications.
Articles:

Understanding the Federal Courts, Administrative Office of the U.S. Courts 1999, p.7-10.

Judicial Oversight or Overreach: The Role of the Judiciary in Modern India.

The Process of Appointment of Appointment of Judges in some foreign Countries: The

United States by Mr. Cheung Wai lam.

Federal Judicial Appointments- Gavel to Gavel.

Law Commission and Committee Reports:

14th Report of the Law Commission of India,1958

79th Report of the Law Commission of India,1979

80th Report of the Law Commission of India,1977

121st Report of the Law Commission of India,1987

214th Report of the Law Commission of India,2008